The issue raised in this appeal is whether the First Amendment or Article I, Paragraph 6 of the New Jersey Constitution prevents a private employer from terminating one of its at-will employees for posting racially insensitive comments about the Black Lives Matter movement on her personal Facebook account. Defendants AtlantiCare Medical System Incorporated and Geisinger Health System Incorporated (AtlantiCare) employed plaintiff Heather J. McVey as a Corporate Director of Customer Service. During the height of the nationwide protests concerning the murder of George Floyd by police in Minnesota, McVey posted that she found the phrase "Black Lives Matter" to be "racist," believed the Black Lives Matter movement "causes segregation," and asserted that Black citizens were "killing themselves." McVey's Facebook profile prominently stated that she was an AtlantiCare Corporate Director. After it discovered the comments, AtlantiCare fired McVey and she filed a complaint alleging wrongful discharge. The court concluded that the First Amendment and Article I, Paragraph 6 of the New Jersey Constitution did not bar a private employer from terminating an at-will employee under the circumstances presented in this case, and held that the trial court properly dismissed McVey's complaint.
Sunday, May 22, 2022
C.E., ET AL. VS. ELIZABETH PUBLIC SCHOOL DISTRICT, ET AL. (L-2231-15, UNION COUNTY AND STATEWIDE) (A-0173-20)
C.E., ET AL. VS. ELIZABETH PUBLIC SCHOOL DISTRICT, ET AL. (L-2231-15, UNION COUNTY AND STATEWIDE) (A-0173-20)
Plaintiffs, the parents of a special needs child, sued defendants to enforce an Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, request. The OPRA request sought all settlements entered into by the school board before the New Jersey Office of Administrative Law (OAL) in petitions filed by or on behalf of students subject to an individualized education program or an accommodation plan.
The court affirmed the trial court's decision to enforce the OPRA request and award plaintiffs' attorney's fees. The court concludes that pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400(d)(1)(A), and state regulations implementing the IDEA, settlements entered before the OAL are public records and defendants were required to disclose them after redacting personally identifiable information.
KNIGHTBROOK INSURANCE COMPANY VS. CAROLINA TANDAZO-CALOPINA, ET AL. (L-1056-20, ESSEX COUNTY AND STATEWIDE) (A-1115-20)
KNIGHTBROOK INSURANCE COMPANY VS. CAROLINA TANDAZO-CALOPINA, ET AL. (L-1056-20, ESSEX COUNTY AND STATEWIDE) (A-1115-20)
The court clarified when an insurance company may be relieved of providing insurance coverage to an insured who refuses to cooperate in defending a personal injury victim's claim pursuant to the terms of the insurance policy. An insurance company's satisfaction of either of the two variables identified in Hager v. Gonsalves, 398 N.J. Super. 529 (App. Div. 2008), constitutes appreciable prejudice sufficient to forfeit any obligation on the part of an insurance company to provide coverage to an insured.
Under the first variable, a trial court must determine whether an insurer's substantial rights have been irretrievably lost as a result of the insured's breach of the insurance policy. Under the second variable, a trial court must examine an insurer's likelihood of success in defending against an accident victim's claim had the insured not failed to cooperate.
In analyzing the appreciable prejudice variables, the court held the first variable applied to an irretrievable loss of substantial rights related to coverage determinations by an insurer. To conclude otherwise would render the second appreciable prejudice variable redundant. The two variables are intended to address different aspects of appreciable prejudice.
LOUIE PEREZ VS. SKY ZONE, LLC, ET AL. (L-3464-20, UNION COUNTY AND STATEWIDE) (A-1861-20)
LOUIE PEREZ VS. SKY ZONE, LLC, ET AL. (L-3464-20, UNION COUNTY AND STATEWIDE) (A-1861-20)
The court holds that an adult can waive his or her right to bring claims in a court and can be compelled to arbitrate personal injury claims when the adult had reviewed a clearly worded arbitration provision before entering a commercial recreational park.
The court also remands for entry of a new order because the trial court erred in dismissing the Law Division action. Instead of dismissing the action, the trial court should have stayed the Law Division action, including the claims against defendants who are not parties to the arbitration provision.
NICOLE HOOVER VS. MERRICK WETZLER, M.D., ET AL. (L-2395-20, CAMDEN COUNTY AND STATEWIDE) (A-2688-20)
NICOLE HOOVER VS. MERRICK WETZLER, M.D., ET AL. (L-2395-20, CAMDEN COUNTY AND STATEWIDE) (A-2688-20)
In this nursing malpractice case, plaintiff Nicole Hoover appeals from an April 1, 2021 order denying reconsideration of a February 19, 2021 order that dismissed her claims with prejudice for failure to provide an appropriate Affidavit of Merit (AOM) against nurse/defendant Nicole Baughman.
After a total-knee replacement surgery, plaintiff sued Wexler, her orthopedic surgeon; defendant, a Registered Nurse First Assistant who was assisting Wexler in the surgery; and others, alleging negligence in the performance of the surgery. Shortly after filing suit, plaintiff filed and served a single AOM applicable to all defendants. The AOM was executed by Dr. Robert Tonks, M.D., a board-certified orthopedic surgeon who has experience performing total knee replacement surgery. The court granted defendant's motion to dismiss, determining that the AOM statute required plaintiff to submit an AOM from either a registered nurse or a physician who is familiar with the nursing standard of care and protocols of nurses.
The court finds that the like-credentialed requirements of the Patients First Act, N.J.S.A. 2A:53-41, applies only to physicians and not to other licensed professionals under the AOM statute, N.J.S.A. 2A:53A-26 to -29. See Meehan v. Antonellis, 226 N.J. 216 (2016) (holding section 41 applies only to physicians and "[t]here is simply no textual support for the application of the like-qualified requirements of section 41" to actions against other licensed professionals under section 27). Because there is no heightened "like-for-like" requirement that prohibited Tonks from authoring an AOM against defendant, he need only have satisfied N.J.S.A. 2A:53A-27's requirement that he "have particular expertise in the general area or specialty involved in the action."
The court concludes that Tonks is a qualified affiant under the statute. Defendant does not dispute Tonks' expertise in knee-replacement surgery. She concedes she was a member of the operative team and that she actively assisted in the surgery as a perioperative registered nurse. Notably, the central allegation against defendant and Wexler is identical: one or both negligently severed plaintiff's popliteal artery and vein. Under these circumstances, the court finds that Tonks is an expert who satisfies section 27 of the AOM statute and that plaintiff need not have filed an AOM from a registered nurse. Whether and to what extent Tonks may serve as an expert against defendant at trial must be fleshed out in discovery, and the court expresses no opinion on that subject.
Accordingly, the court reverses and remands for further proceedings consistent with the court's opinion.
JACOB MATULLO VS. SKYZONE TRAMPOLINE PARK, ET AL. (L-3117-20, OCEAN COUNTY AND STATEWIDE) (A-2813-20)
JACOB MATULLO VS. SKYZONE TRAMPOLINE PARK, ET AL. (L-3117-20, OCEAN COUNTY AND STATEWIDE) (A-2813-20)
In this appeal, the court addresses the enforceability of an arbitration provision in an agreement signed by a fifteen-year-old minor to gain access to a commercial trampoline park. The court holds that the arbitration provision is not enforceable because the minor had the right to disaffirm the agreement and the limited exceptions to that right did not apply. Accordingly, the court reverses and vacates the order granting defendants' motion to compel arbitration of plaintiff's claims and dismissing his complaint with prejudice. The matter is remanded with instruction that plaintiff's complaint be reinstated so that his claims can be litigated in the Law Division.
Sunday, May 1, 2022
APPLIED UNDERWRITERS, ET AL. VS. NEW JERSEY DEPARTMENT OF BANKING AND INSURANCE, ET AL. (L-0047-20, MERCER COUNTY AND STATEWIDE) (A-0653-20) APPLIED UNDERWRITERS, ET AL. VS. NEW JERSEY DEPARTMENT OF BANKING AND INSURANCE, ET AL. (L-0047-20, MERCER COUNTY AND STATEWIDE) (A-0653-20)
The court resolves the jurisdictional question of whether the Commissioner of the Department of Banking and Insurance ("DOBI") may pursue an administrative action against two out-of-state companies and their two licensed New Jersey affiliates for engaging in alleged improper insurancerelated practices in this State—or whether the Commissioner must instead rely on the Attorney General to bring a lawsuit against those companies in the Superior Court.
Specifically, the court interprets N.J.S.A. 17:32-20 ("Section 20"), which the Legislature enacted in 1968 as part of the Non-Admitted Insurers Act, N.J.S.A. 17:32-16 to -22. In pertinent part, Section 20 reads:
Whenever it shall appear to the commissioner that any insurer, or any employee, agent, promotional medium, or other representative thereof, has violated, is violating, or is about to violate the provisions of this act, the Attorney General, upon the request of the commissioner, shall institute a civil action in the Superior Court for injunctive relief and for such other relief as may be appropriate under the circumstances.
[N.J.S.A. 17:32-20 (emphasis added).]
The court holds that Section 20 does not restrict the Commissioner to the path of a Superior Court action in this circumstance. Based on the text, legislative history, and public policies of the statute as a whole, as well as principles of primary jurisdiction, the Commissioner has the authority to choose to pursue an administrative complaint against the companies instead of a lawsuit brought by the Attorney General.
Consequently, the court remands this matter to DOBI and directs that a previously stayed hearing in the Office of Administrative Law be reactivated.
Dobco, Inc. v. Bergen County Improvement Authority (086079) (Passaic County & Statewide) (A-18/19-21; 086079)
Dobco, Inc. v. Bergen County Improvement Authority (086079) (Passaic County & Statewide) (A-18/19-21; 086079)
The Court affirms the judgment of the Appellate Division substantially for the reasons expressed in Judge Messano’s published opinion. The Court requires that, going forward, a plaintiff claiming taxpayer standing in an action challenging the process used to award a public contract for goods or services must file a certification with the complaint. As to the merits of this appeal, the Court departs from the Appellate Division’s decision in only one respect: the Court does not rely on the leasing and financing arrangements contemplated by the BCIA and defendant County of Bergen.